# Johnson v. Bolden, Jr.

> District Court, District of Columbia · August 10, 2017 · 273 F. Supp. 3d 278

URL: https://www.frixlaw.com/law-library/cases/4194853

## Case

- **Full name:** Donald S. JOHNSON, Plaintiff, v. Robert M. LIGHTFOOT, Administrator, National Aeronautics and Space Administration, Defendant
- **Court:** District Court, District of Columbia
- **Decided:** August 10, 2017
- **Citations:** 273 F. Supp. 3d 278
- **Precedential status:** Published
- **Opinion:** Opinion by Contreras
- **Judges:** Judge Rudolph Contreras
- **Nature of suit:** Civil
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4194853

## How later opinions describe it (automated extraction)

- rejecting Government’s view, concluding that court lacked jurisdiction

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DONALD S. JOHNSON, :
:
Plaintiff, : Civil Action No.: 15-1465 (RC)
:
v. : Re Document No.: 13
:
1
ROBERT M. LIGHTFOOT, Administrator, :
National Aeronautics and Space Administration :
:
Defendant. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Donald S. Johnson brings this action against Defendant Robert M. Lightfoot,

administrator of the National Aeronautics and Space Administration (“NASA”), for

discrimination under the Age Discrimination in Employment Act (“ADEA”), as amended, 29

U.S.C. § 633a; Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended; 42 U.S.C.

§ 2000e et seq.; and the Equal Pay Act of 1963 (“EPA”), as amended, 29 U.S.C. § 206(d). Mr.

Johnson alleges that NASA refused to promote him and denied him equal pay for both

discriminatory and retaliatory reasons. NASA now moves for summary judgment. See Def.’s

Mot. Summ. J., ECF No. 13. For the reasons stated below, the Court finds that NASA is entitled

to summary judgment on Mr. Johnson’s ADEA and Title VII claims because Mr. Johnson has

not rebutted NASA’s performance-based reasons for not promoting him. The Court also finds

1
Pursuant to Rule 25(d) of the Federal Rule of Civil Procedure, Robert M. Lightfoot is
current the Administrator for the National Aeronautics and Space Administration and is
automatically substituted as the sole defendant.
that it lacks subject-matter jurisdiction over Mr. Johnson’s EPA claim and therefore dismisses it

without prejudice.

II. BACKGROUND

Mr. Johnson is an African-American man who was born in 1947. Def.’s Statement

Material Facts to Which There is No Genuine Dispute (“Def.’s Statement Facts”) ¶ 1, ECF No.

13-2. He “began working for NASA on March 8, 1999, as a GS-13 Equal Employment

Opportunity [(‘EEO’)] Specialist within NASA’s Complaint’s Management Division of the

Office of Diversity and Equal Opportunity (‘CMD’).” Id. ¶ 2. During his time at NASA, Mr.

Johnson never received a promotion to GS-14 and ultimately retired on December 31, 2010 at

the same GS-13 level at which he started. Id. ¶¶ 3–4, 18.

In 2008, CMD announced that two identical EEO Specialist positions were available as

career ladder GS-13/14 positions. Id. ¶ 20. Mr. Johnson and Aisha Moore, a woman who was

under forty years old and had no prior EEO activity, both applied for the positions. Id. ¶¶ 14, 21;

Moore Notification of Personnel Action, ECF No. 13-9. However, after Mr. Johnson and Ms.

Moore applied, it became apparent that the positions “were incorrectly advertised as GS-13/14

positions,” and the “announcement should have stated that there was potential to be promoted to

the GS-14 grade level.” Brenda Manuel Aff. (“Manuel Aff.”) ¶ 9, ECF No. 13-7. Thus, “the

vacant positions were revised and re-advertised as . . . GS-13 [positions] with potential for

advancement to GS-14 status.” Def.’s Statement Facts ¶ 22. Ultimately, both Mr. Johnson and

Ms. Moore were selected to fill these revised positions. Id. ¶ 25. But shortly thereafter, Ms.

Moore also received a promotion to GS-14. Id. ¶ 27. As EEO Specialists, both Mr. Johnson’s and

Ms. Moore’s “work responsibilities included managing EEO cases, writing Final Agency

Decisions (‘FADs’), overseeing the work of junior EEO Specialists, drafting acceptance or

2
dismissal letters in response to EEO complaints, and working with NASA’s Office of the

General Counsel.” Id. ¶¶ 6, 15; Linda Jackson Aff. (“Jackson Aff.”) ¶ 8, ECF No. 13-5.

Though Mr. Johnson and Ms. Moore maintained similar work responsibilities, see Def.’s

Statement Facts ¶¶ 6, 15, they performed at disparate levels. Ms. Moore “completed several

additional office-wide projects, including[:] updating the office website, contributing articles to

the ODEO Endeavor newsletter, editing articles, providing analyses of new court cases, helping

develop NASA’s anti-harassment procedures, managing the ‘I complaints’ tracking system, and

creating draft FAD templates to produce uniformity in office-wide work product” in addition to

“completing the same tasks that [Mr.] Johnson completed.” Id. ¶ 36. Moreover, during this time

period “Ms. Moore’s work product required significantly fewer corrections and did not warrant

the same level of supervision that [Mr.] Johnson’s work required.” Id. ¶ 35.

Mr. Johnson, on the other hand, “routinely received performance reviews identifying the

need for improved written skills and timeliness.” Id. ¶ 28. Indeed, Mr. Johnson had many

“written submissions . . . returned with numerous errors identified.” Id. ¶ 29. In some cases, Mr.

Johnson failed to complete assignments at all, such as the “Contingent Worker Desk Guide”

which had been assigned to him in 2008. Id. ¶ 30. Mr. Johnson’s supervisors also noted that “he

needed to improve his written work as well as the timeliness of his submissions” in both 2009

and 2010. Id. ¶¶ 31–32. Mr. Johnson made these types of errors repeatedly and those errors

persisted even after they were pointed out to him. See Jackson Aff. ¶ 10. Mr. Johnson even

attended a legal writing course and proofreading training, but his errors continued. Id. ¶ 12. Thus,

Mr. Johnson’s supervisor “informed [Mr.] Johnson that he was not being promoted on account of

his unexceptional work performance and that [Mr. Johnson] was therefore aware of the reasons

preventing his promotion.” Def.’s Statement Facts ¶ 33.

3
On December 8, 2010, Mr. Johnson “contacted a NASA EEO counselor to lodge his

complaints of non-promotion and unequal pay.” Id. ¶ 16; see also EO Counselor’s Report ¶ 3,

ECF No. 13-10. Following that contact, Mr. Johnson filed a formal complaint on March 23,

2011. EEO Complaint of Discrimination (“EEO Compl.”), ECF No. 13-3. Mr. Johnson’s

complaint alleged that from September 28, 2008, through December 31, 2010, he faced

discrimination because of his age, sex, and race, and also claimed that he was subjected to

retaliation for “filing a prior [discrimination] complaint.”2 Id. Mr. Johnson asserted “that the

discrimination and retaliation took the form of non-promotions and unequal compensation”

because he was paid less than his female colleagues. Def.’s Statement Facts ¶ 19; Def.’s Mem. at

3–4; see also EEO Compl. The Equal Employment Opportunity Commission (“EEOC”) granted

summary judgment for NASA on both claims, finding that NASA had shown legitimate, non-

discriminatory, non-retaliatory reasons sufficient to defeat Mr. Johnson’s claims. EEOC

Decision at 5, ECF No. 13-12. Furthermore, the EEOC ruled that Mr. Johnson’s EPA claim

failed because he failed to show that he received “less pay for the same work.” Id. (internal

quotations omitted).

On September 8, 2015, Mr. Johnson filed the present action seeking relief under the

ADEA, Title VII, and the EPA. Mr. Johnson contends that NASA denied him a promotion and

subjected him to disparate pay because of his sex, age, and as a reprisal for previously filing an

informal EEO complaint. Compl. ¶¶ 36–48. Among other relief, Mr. Johnson seeks “back pay,

wages, and benefits in an amount to be shown at trial.” Compl. at 8. Although Mr. Johnson does

2
In 2005, Mr. Johnson and his co-worker Donald King “filed companion formal
complaints of discrimination and retaliation against NASA.” Compl. ¶ 11, ECF No. 1. In 2008,
Mr. Johnson and Mr. King “filed separate but companion lawsuits against NASA in this Court
alleging discrimination and retaliation.” Id. ¶ 12.

4
not seek damages in an amount sum certain, he does allege that “the amount in controversy

exceeds $10,000.” Compl ¶ 3.

On October 17, 2016, NASA moved for summary judgment on all of Mr. Johnson’s

claims. See generally Def.’s Mot. Summ. J., ECF No. 13. Mr. Johnson was to file his opposition

on or before November 16, 2016, see Minute Order (Sept. 12, 2016), yet no opposition was filed

on that date. Two days later, the Court received a consent motion for an extension of time nunc

pro tunc. See generally Pl.’s Consent Mot. Extension Time, Nunc Pro Tunc, ECF No. 14. The

Court granted the motion, ordering that Mr. Johnson file his opposition on or before January 30,

2017. See Minute Order (Nov. 18, 2016). But that date, too, came and went without any

opposition. Thus, the Court ordered that the parties submit a joint status report. See Minute Order

(Feb. 1, 2017). The parties’ status report indicated that Mr. Johnson would file a consent motion

on February 6, 2017, which would ask this Court to allow Mr. Johnson until March 3, 2017 to

file his opposition. Joint Status Report ¶ 2, ECF No. 17. But no such motion was ever filed.

Nonetheless, the Court graciously deemed the request in the Joint Status Report to be a motion

for extension of time and ordered that Mr. Johnson file his opposition by March 3, 2017. Minute

Order (Feb. 13, 2017). But on that date, instead of filing an opposition, Mr. Johnson filed yet

another consent motion for extension of time, nunc pro tunc, now asking that the Court allow

him to file his opposition by March 30, 2017. Pl.’s Consent Mot. Extension Time, Nunc Pro

Tunc, ECF No. 18. The Court reluctantly granted the motion. Minute Order (Mar. 6, 2017).

However, Mr. Johnson again failed to file an opposition or any other document with the Court.

Accordingly, the Court ordered that the parties appear for a status conference to discuss Mr.

Johnson’s persistent failure to meet the repeatedly extended deadline. See Minute Order (Apr.

19, 2017). The Court specifically required the attendance of Mr. Johnson to ensure that he was

5
aware of his counsel’s failure to file a timely opposition. Following that status conference, the

Court gave Mr. Johnson one final extension of time to file a response to Defendant’s motion—

until May 29, 2017. Minute Order (May 8, 2017). But no such opposition or any other filing

from Mr. Johnson was forthcoming. Now, more than nine months after NASA initially filed its

motion for summary judgment, having granted Mr. Johnson four extensions, and having held a

status conference specifically to address the issue, the Court has still received no opposition or

other response from Mr. Johnson. The Court will wait no longer for Mr. Johnson to address the

motion.

III. LEGAL STANDARD

A court may grant summary judgment when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A “material” fact is one capable of affecting the substantive outcome of the

litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is

“genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-

movant. See Scott v. Harris, 550 U.S. 372, 380 (2007).

The principal purpose of summary judgment is to streamline litigation by disposing of

factually unsupported claims or defenses and determining whether there is a genuine need for

trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial

burden of identifying portions of the record that demonstrate the absence of any genuine issue of

material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-

movant must point to specific facts in the record that reveal a genuine issue that is suitable for

trial. See Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must

“eschew making credibility determinations or weighing the evidence[,]” Czekalski v. Peters, 475

6
F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the

light most favorable to the non-movant, Anderson, 477 U.S. at 255. Nevertheless, conclusory

assertions offered without any evidentiary support do not establish a genuine issue for trial. See

Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

The D.C. Circuit has held that a “motion for summary judgment cannot be ‘conceded’ for

want of opposition.” Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016).

“The burden is always on the movant to demonstrate why summary judgment is warranted,” and

“[t]he nonmoving party’s failure to oppose summary judgment does not shift that burden.” Id.

(quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J.,

concurring)). Thus, this Court cannot “grant a motion for summary judgment as conceded

without considering the issues on the merits.” Habliston v. FINRA Dispute Resolution, Inc., — F.

Supp. 3d —,No. 15-2225, 2017 WL 1906584, at *3 (D.D.C. May 8, 2017) (citing Winston &

Strawn, 843 F.3d at 506–08). “The court may, however, treat any unaddressed factual statement

in the defendant’s motion as undisputed.” Koch v. White, 12-cv-1934, 2017 WL 1655185, at *4

(D.D.C. May 2, 2017) (internal citations omitted); see also United States v. Mohammad, 15-cv-

514, 2017 WL 1403144, at *4 (D.D.C. Apr. 19, 2017) (“[n]otwithstanding a non-movant’s

persistent refusal to respond to a motion for summary judgment, courts may accept as true any

factual assertions submitted by the movant in support of its motion, unless the non-movant

submits his or her own evidence showing the movant’s assertions are untrue.”); LCvR 7(h)(1)

(“In determining a motion for summary judgment, the Court may assume that facts identified by

the moving party in its statement of material facts are admitted, unless such a fact is controverted

in the statement of genuine issues filed in opposition to the motion.”).

7
IV. ANALYSIS

Mr. Johnson alleges that NASA retaliated and discriminated against him by “depriv[ing]

[him] of equal employment opportunities in promotion, salary, and other terms and conditions of

his employment,” and also denied him “equal pay, equal performance bonuses, and equal

promotional opportunities in comparison to . . . similarly-situated women.” Compl. ¶¶ 37, 39, 43,

47. However, he has failed to respond to Defendant’s motion for summary judgment despite

having been given ample opportunity to do so. Consequently, the Court will evaluate the

Defendant’s motion in light of the standard for summary judgment and based on the record and

the facts deemed to be undisputed. Doing so, the Court finds that Defendant is entitled to

summary judgment on Mr. Johnson’s Title VII and ADEA claims and that the Court lacks

subject-matter jurisdiction as to his EPA claim.

A. Age Discrimination, Sex Discrimination, and Retaliation Claims

First, the Court finds that Defendant is entitled to summary judgment on Mr. Johnson’s

age discrimination, sex discrimination, and retaliation claims. The ADEA and Title VII together

prohibit the federal government and other employers from taking adverse employment actions

based on an employee’s age, race, color, religion, sex, or national origin, 42 U.S.C. §§ 2000e–

2(a), 2000e–16(a); 29 U.S.C. §§ 621 et seq, and forbids those employers from retaliating against

employees who make a “charge” or “oppose[] any practice made an unlawful employment

practice” under the Acts, 42 U.S.C. § 2000e–3(a); 29 U.S.C. § 623(d); see also Walker v.

Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015) (Title VII); Forman v. Small, 271 F.3d 285, 296

(D.C. Cir. 2001) (waiver of federal sovereign immunity in ADEA extends to retaliation claims).

To establish a prima facie discrimination claim, a plaintiff must demonstrate that he suffered an

adverse employment action because of his age, race, color, religion, sex, or national origin. See

8
Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). To prove unlawful retaliation, a

plaintiff must establish that (1) he made a charge or opposed a practice made unlawful by Title

VII or the ADEA, (2) that the employer took a materially adverse action against him, and (3) that

the employer took that action because of his protected conduct. Holcomb v. Powell, 433 F.3d

889, 901–02 (D.C. Cir. 2006) (Title VII); Tomasello v. Rubin, 167 F.3d 612, 619 (D.C. Cir.

1999) (“[T]he test for determining retaliation under the ADEA and Title VII is identical.”).

However, once a defendant has offered a legitimate, non-discriminatory, non-retaliatory reason

for its actions, the Court is only to consider whether “‘the employee produced sufficient evidence

for a reasonable jury to find that the employer’s asserted non-discriminatory or non-retaliatory

reason was not the actual reason and that the employer intentionally discriminated or retaliated

against the employee.” Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) (quoting Brady, 520

F.3d at 493) (brackets omitted).

Here, Mr. Johnson alleges that NASA refused to promote him because of his age, sex,

and prior EEO activity.3 See Compl. ¶¶ 37, 42–43, 47–48. NASA claims that it did not promote

Mr. Johnson “because he routinely failed to produce satisfactory work in a timely fashion.”

Def.’s Mot. at 9. As the courts in this circuit have repeatedly held, this kind of performance-

based reason represents a legitimate, non-discriminatory, non-retaliatory reason for adverse

3
Although Mr. Johnson also seems to allege that he was subject to disparate pay because
he is a man and because of his prior EEO activity, see Compl. ¶¶ 39, 43, 47–48, it is not clear
from the Complaint or any other record evidence how, if at all, this claim is distinct from his
failure-to-promote claim. Indeed, a review of the record reveals that there is no evidence that
similarly situated women or others without EEO activity received better compensation, or any
evidence, apart from his non-promotion, that supports the notion that NASA took any action to
adversely affect Mr. Johnson’s pay. Thus, the Court considers this “disparate pay” claim to be
synonymous with his failure-to-promote claim. However, even if the Court were to consider it
standing alone, the Court would find that no reasonable jury could conclude that NASA paid Mr.
Johnson less for discriminatory or retaliatory reasons due to the dearth of evidence in the record.

9
employment actions, such as non-promotion.4 See, e.g., Johnson v. Vilsack, 815 F. Supp. 2d 221,

234 (D.D.C. 2011); Milliner v. Dist. of Columbia., 932 F. Supp. 345, 351 (D.D.C. 1996); Green

v. Kinney Shoe Corp., 728 F. Supp. 768, 773–74 (D.D.C. 1989). The undisputed record,

including sworn declarations from Mr. Johnson’s respective first- and second-level supervisors,

supports NASA’s assertion of Mr. Johnson’s poor performance. For example, Mr. Johnson’s

first-level supervisor, Linda Jackson, attested that Mr. Johnson failed to “take [] initiative in his

work” and frequently submitted work with “sloppy errors” and “analytical mistakes.” See

Jackson Aff. ¶ 14, ECF No. 13-5; see also Manuel Aff. ¶¶ 12–13 (“There were [ongoing] issues

with [Mr. Johnson] completing the FADs in a timely manner, and there were problems with the

quality of his work,” specifically “many of [Mr. Johnson’s] decisions were returned citing

errors”). Moreover, even though Mr. Johnson “was given career enhancing assignments,” he

failed to complete them. Jackson Aff. ¶ 15. Indeed, he was given leadership of one such project

in 2008 called the “Contingent Worker Desk Guide,” but he failed to complete that project even

by 2010 when he retired. See Jackon Aff. ¶ 15; see also Manuel Aff. ¶ 17. According to Ms.

Jackson, getting Mr. Johnson to move that project along was “like pulling teeth.” Jackson Aff.

¶ 15. As a result of all of this, Mr. Johnson “routinely received performance reviews identifying

the need for improved written skills and timeliness.” Def.’s Statement Facts ¶ 28, ECF No. 13-2.

During these discussions, Ms. Jackson “talked to him about what he needed to do to be promoted

4
The Court notes that similar claims from Mr. Johnson in a previous lawsuit against
NASA have already been rejected on the grounds of poor job performance. See Johnson v.
Bolden, 699 F. Supp. 2d 295 (D.D.C. 2010). In that case, “Mr. Johnson claimed that he and other
male employees were treated ‘unfairly’ and were improperly denied bonuses.” Def.’s Mem. at 10
(citing Johnson, 699 F. Supp. 2d at 298). However, NASA presented as a legitimate, non-
discriminatory basis for its actions the “prevailing view among management officials that
deficiencies in [Mr. Johnson’s] performance were affecting the quality of his work product and,
as a result, the amount of bonus that he would receive.” Johnson, 699 F. Supp. 2d at 300. The
Court granted summary judgment in NASA’s favor. Id. at 302.

10
and how he needed to improve his performance” before a promotion would be appropriate.

Jackson Aff. ¶¶ 9, 19. Overall, Mr. Johnson’s supervisors believed he “was not showing that he

could perform at a higher level.” Jackson Aff. ¶ 14; see also Manuel Aff. ¶¶ 12, 13, 18 (Mr.

Johnson “was not promoted due to performance issues” and because he “was not performing at

the GS-14 grade level”). “Thus, the only question before the court is whether [Mr. Johnson] has

advanced sufficient evidence for a reasonable jury to find Defendant’s stated reasons to be

pretext for discrimination.” Koch, 12-cv-1934, 2017 WL 1655185, at *10.

Having not responded to the motion for summary judgment, Mr. Johnson has not carried

that burden. Although Mr. Johnson makes various allegations of discrimination and retaliation

throughout his Complaint, he cannot rely on those alone to rebut Defendant’s legitimate, non-

discriminatory, non-retaliatory reason for not promoting him. Grimes v. Dist. of Columbia, 794

F.3d 83, 94 (D.C. Cir. 2015) (“[I]t is well established that [a plaintiff] cannot rely on the

allegations of her own complaint in response to a summary judgment motion[.]”). In this case,

the record contains no evidence of discriminatory or retaliatory statements, no evidence that

there is any inconsistency in Defendant’s stated reasons for non-promotion, or any evidence to

demonstrate that his supervisors’ assessment of his performance was either dishonest or

unreasonable. See Allen, 795 F.3d at 41 (D.C. Cir. 2015) (“‘If the employer’s stated belief about

the underlying facts is reasonable in light of the evidence,’ and is honestly held, there ordinarily

is no basis to put the case to a jury, even if the employee disagrees with the discretionary

decision the employer made.” (quoting Brady, 520 F.3d at 495)).

Mr. Johnson does attempt to raise the specter of discrimination and retaliation by alleging

that Ms. Moore was given more favorable treatment than he was. Mr. Johnson makes much of

the fact that Ms. Moore, a women who was under the age of forty with no prior EEO activity,

11
was later promoted to GS-14 while he was not. The D.C. Circuit has held that “show[ing] that

similarly situated employees of a different [sex or age or employees who had not engaged in

protected activity] received more favorable treatment” is “[o]ne way to discredit an employer’s

justification.” Royall v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 548 F.3d 137, 145 (D.C. Cir.

2008) (citing Brady, 520 F.3d at 495). But for two employees to be similarly situated, “all of the

relevant aspects of [the] employment situation” must be “nearly identical.” Holbrook v. Reno,

196 F.3d 255, 261 (D.C. Cir. 1999) (internal citations and quotations omitted). Although Ms.

Moore and Mr. Johnson had similar duties, the record and undisputed facts reveal that there is a

significant difference in terms of their performance. Indeed, unlike Mr. Johnson, Ms. Moore’s

supervisors found that she “performed at [a] distinguished level” and it is undisputed that she

completed several office-wide projects on top of her delineated responsibilities. Def.’s Statement

Facts ¶¶ 36, 38; see also Jackson Aff. ¶¶ 8, 20–21 (highlighting Ms. Moore’s superior

performance which warranted her promotion); Manuel Aff. ¶¶ 15, 17, ECF No. 13-7 (same).

Thus, they believed she was “ready to move to, and perform work at, the next grade level.”

Def.’s Statement Facts ¶ 38. Mr. Johnson simply offers no evidence to demonstrate that he and

Ms. Moore performed at a comparable level. Therefore, Ms. Moore does not represent a

“similarly situated” employee and her promotion does not give rise to an inference of

discrimination or retaliation necessary to rebut Defendant’s legitimate, non-discriminatory, non-

retaliatory reason for not promoting Mr. Johnson. See e.g., Neuren v. Adduci, Mastriani, Meeks

& Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995) (plaintiff was not similarly situated to colleague

where employer viewed the “unrelated criticisms” of colleague as “less serious” than the

criticisms of plaintiff); Kline v. Springer, 602 F. Supp. 2d 234, 240 (D.D.C. 2009) (holding that

plaintiff’s colleagues were not similarly situated, in part, because “plaintiff failed to show that

12
her performance was similar to theirs”). Furthermore, Mr. Johnson does not identify, and the

record does not reveal, any other employee who was similarly situated to him, yet who was

treated more favorably.

In short, the current record before the Court does not support the notion that NASA’s

performance-based reasons for not promoting Mr. Johnson were pretext for discrimination or

retaliation. Thus, Defendant is entitled to summary judgment on Mr. Johnson’s age

discrimination, sex discrimination, and retaliation claims.

B. Equal Pay Act Claim

Although NASA also seeks summary judgment on Mr. Johnson’s EPA claim, the Court

cannot reach these arguments because it lacks subject-matter jurisdiction to adjudicate the claim.

See Hunter v. Rice, 480 F. Supp. 2d 125, 130–31 (D.D.C. 2007) (declining to grant summary on

EPA claim because it lacked subject-matter jurisdiction, noting that “the proper course of action

is to dismiss the claim . . . [or] to transfer it to a court that does have jurisdiction, not to grant a

motion for summary judgment”); Kirkham v. Societe Air France, 429 F.3d 288, 293 (D.C. Cir.

2005) (“Seeking summary judgment on a jurisdictional issue . . . is the equivalent of asking a

court to hold that because it has no jurisdiction the plaintiff has lost on the merits. This is a

nonsequitur.”) (quoting Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir. 1987)). This Court

has “an independent obligation to determine whether subject-matter jurisdiction exists, even in

the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)

(citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). If the Court finds that it

lacks jurisdiction over a civil action, the Court may, in the interest of justice, transfer that action

to another court where it could have been brought at the time it was filed. See 28 U.S.C. § 1631.

Otherwise, it must dismiss.

13
Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies

outside this limited jurisdiction.” Rasul v. Bush, 542 U.S. 466, 489 (2004) (quoting Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). It is the plaintiff’s burden to establish

that the court has subject-matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561,

(1992). To determine whether jurisdiction exists, a court may “consider the complaint

supplemented by undisputed facts evidenced in the record, or the complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground Expansion

v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d

192, 197 (D.C. Cir. 1992)).

The EPA, 29 U.S.C. § 206(d), which is part of the Fair Labor Standards Act of 1938

(“FLSA”), 29 U.S.C. § 201, et seq., prohibits discrimination in rates of pay paid to employees on

the basis of gender. The purpose of the EPA is to ensure that employees of both sexes are paid

equally for the same job. Thus, the EPA prohibits employers from differentiating on the basis of

sex by paying employees of one sex lower wages than employees of the other sex for performing

a job requiring equal skill, effort, and responsibility, under similar working conditions. 29 U.S.C.

§ 206(d).

Courts in this circuit have consistently held that claims against the United States brought

pursuant to the EPA, or the FLSA more generally, must satisfy the jurisdictional requirements of

the Tucker Act, 28 U.S.C. § 1491, or the Little Tucker Act, 28 U.S.C. § 1346(a)(2). See e.g., Doe

v. Dep’t of Justice, 753 F.2d 1092, 1101 (D.C. Cir. 1985); Waters v. Rumsfeld, 320 F.3d 265,

271–72 (D.C. Cir. 2003); Hunter v. Rice, 480 F. Supp. 2d 125, 131 (D.D.C. 2007); Powell v.

Castaneda, 390 F. Supp. 2d 1, 7 (D.D.C. 2005); Weber v. Hurtgen, 297 F.Supp.2d 58, 62

(D.D.C. 2003); De Leon v. England, No. 02-cv-0473, 2003 WL 21767504, at *2 (D.D.C. Feb.

14
20, 2003). The Tucker Act provides that the Court of Federal Claims has “jurisdiction to render

judgment upon any claim against the United States founded either upon the Constitution, or any

Act of Congress . . . not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Little Tucker Act,

however, gives federal district courts concurrent jurisdiction over non-tort civil actions against

the United States for claims “not exceeding $10,000 in amount, founded either upon the

Constitution, or any Act of Congress, or any regulation of an executive department . . . .” 28

U.S.C. § 1346(a)(2). Accordingly, the D.C. Circuit has held that “the Court of Federal Claims

has exclusive jurisdiction to adjudicate” all “FLSA claims in excess of $10,000” and, unless a

plaintiff waives his claims in excess of $10,000, “the district court [is] without jurisdiction to

rule on their merits.” 5 Waters, 320 F.3d at 272; see also Adair, 191 F. Supp. 3d at 134

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NASA states that it does not “contest this Court’s jurisdiction to hear Johnson’s EPA
claim” and cites the Supreme Court’s decision in United States v. Bormes, 133 S. Ct. 12, (2012)
as support for its position. Def.’s Mot. Summ. J. at 12 n.5. Nevertheless, as noted above, the
Court has a sua sponte obligation to ensure that it indeed has subject-matter jurisdiction under
the Constitution and statute. Maldonado-Torres v. Mukasey, 576 F.Supp.2d 57, 58 (D.D.C. 2008)
(citing Doe by Fein v. Dist. of Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996)). In Bormes, the
Supreme Court held only that the Little Tucker Act did not waive the sovereign immunity of the
United States with respect to claims under the Fair Credit Reporting Act (“FCRA”) because the
FCRA represented a “detailed remedial scheme,” including “precisely defin[ing] the appropriate
forum” for litigation, and therefore “only [that statute’s] own text can determine whether the
damages liability Congress crafted extends to the Federal Government.” Bormes, 133 S. Ct. at
15, 19 (internal quotations and citations omitted). In contrast, “Congress unmistakably provided
for judicial imposition of monetary liability on the United States for FLSA violations” and the
FLSA “does not specify a forum that is contrary to that specified by the Tucker Act.” Abbey v.
United States, 745 F.3d 1363, 1370 (Fed. Cir. 2014); see also Zumerling v. Devine, 769 F.2d
745, 749 (Fed. Cir. 1985) (the FLSA “require[s] one to look elsewhere to find out what court, if
any, has jurisdiction.”). Accordingly, having “so plainly [] authorized damages suits against the
United States, it is natural to read the [FLSA] as implicitly specifying a forum (the Tucker Act
forum) in order to complete the waiver of sovereign immunity, given the background principle
that waivers of sovereign immunity are generally tied to particular courts.” Abbey, 745 F.3d at
1370 (internal citations omitted); id (“[G]iven that, in the FLSA, Congress plainly meant to
subject the United States to damages suits for violation . . . , the fairest reading of [the FLSA] is
that it affirmatively invokes the forum specification for those damages suits found outside the
four corners of the FLSA” and “[t]he Tucker Act is the only available specification that has been
identified.”). In short, the Court agrees with the Federal Circuit and other courts that Bormes

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(“[B]ecause these plaintiffs do not waive their [FLSA] claims in excess of $10,000, . . . this

Court lacks jurisdiction to resolve the matter.”); Powell, 390 F.Supp.2d at 7 (holding that the

district court lacked subject-matter jurisdiction over plaintiff's EPA claims, which sought more

than $10,000 in damages); Weber, 297 F.Supp.2d at 62 (“In light of [plaintiff’s] damages [for

compensatory and back pay losses, which amounted to more than $10,000], the Court lack[ed]

jurisdiction and transfer[red] the EPA claim to the Court of Federal Claims.”) (citation omitted);

De Leon, 2003 WL 21767504, at *2 (transferring plaintiff’s EPA claims to Court of Federal

Claims, “the only court in which the claim could have been properly brought”). As a result, this

Court’s jurisdiction to adjudicate Mr. Johnson’s EPA claim necessarily turns on the amount of

damages Mr. Johnson is seeking and whether he has waived any damages amounts above

$10,000.

Mr. Johnson seeks compensatory damages, including “back pay, wages, and benefits in

an amount to be shown at trial,” however, he does not identify any precise amount. Compl. at 8–

9. Nevertheless, Mr. Johnson does make clear in his Complaint that “the amount in controversy

exceeds $10,000.” Compl ¶ 3. Moreover, upon reviewing the Complaint, the Court can discern

no waiver of any amounts over $10,000—a waiver which the D.C. Circuit has held “must be

‘clearly and adequately expressed.’” Waters 320 F.3d at 271 (quoting Goble v. Marsh, 684 F.2d

12, 17 (D.C. Cir. 1982)). Therefore, the Court must conclude that it lacks subject-matter

jurisdiction over Mr. Johnson’s EPA claim. Given Mr. Johnson’s persistent failure to respond to

NASA’s motion, the Court believes that the most appropriate course of action is to dismiss the

EPA claim without prejudice. See Powell, 390 F. Supp. 2d at 7 (dismissing EPA claim where

does not disturb longstanding precedent that the Court of Federal Claims has exclusive
jurisdiction over FLSA and EPA claims against the United States for damages exceeding
$10,000. See e.g., Abbey at 1368–72; Adair, 191 F. Supp. 3d 129.

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“plaintiff [] conceded that she seeks more than $10,000 in damages because she does not counter

the defendant’s EPA argument.”).

V. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that the Defendant’s Motion for

Summary Judgment is GRANTED as to Mr. Johnson’s Title VII and ADEA claims, but

DENIED as to Mr. Johnson’s EPA claim. It is FURTHER ORDERED that Mr. Johnson’s EPA

claim is dismissed without prejudice for want of subject-matter jurisdiction. An order consistent

with this Memorandum Opinion is separately and contemporaneously issued.

Dated: August 10, 2017 RUDOLPH CONTRERAS
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4194853. Public record. Not legal advice.